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So today copyright scholar Joe Liu at Boston College asked a room full of law professors an interesting question. What did we think copyright would look like in 8 years? Here were some of the main categories of predictions (some contradict):
Last week I went to a Black Eyed Peas concert at the Avalon in Boston. It was a DNC event sponsored by the RIAA, and at the doors, big signs were posted everywhere: “Absolutely No Cameras.”
The result: Chaos in the line, as people were sent home after failing cell phone inspection. The choice was to leave your phone / camera behind or leave the concert. People were mad. (“Where is the love?” they asked). So I asked the bouncer, “what’s this about?”
And he said “It’s not our deal. Its those guys [the sponsors].”
So perhaps this is becoming routine and I’m late to it. But can the idea really be (as this suggests) that cell phone pictures of a band are considered a competitive threat? There’s controlling, and then there’s obsessive-compulsive.
The FCC today tenatively concluded that most Voice-over IP providers will likely have to comply with a major federal wiretapping statute, the Communications Assistance for Law Enforcement Act (CALEA). This means companies like Vonage will probably soon have to provide law enforcement with some way to tap their service.
I don’t consider the vote particularly surprising — VoIP phones look like telephones, and who’s going to vote against national security? But I nonetheless think the approach unfortunate.
Here’s why. VoIP, despite the incessant hype, is still a baby. There has still been more said about VoIP than actually using VoIP. Yet this infant has already attracted more regulatory attention than many grown-up technologies. That kind of attention is not a good thing for a youngster: too much light makes the baby go blind. Its a bad thing to have startups spending their time thinking about regulatory compliance instead of better service. Having the the FCC and Congress as foster-parents is at best like being a child-star and at worst like being raised by alcoholics. Either way, stunted growth is a likely outcome.
I think the FCC and Congress do better to regulate what actually exists, not what is supposedly “on its way.” Just think “Digital Television.”
The full text of Dan Gillmor’s book “We the Media,” about blogs and other things, is now online. (Thanks to fellow alper Cory Doctorow).
Years ago, when I was a law clerk, I was impressed by how much Judge Posner could accomplish with one simple question. He would ask, “What exactly is the purpose of this law (or proposed rule)?” It was astonishing how often lawyers would stare or gasp, unable to answer this most basic of questions.
I think the least you can ask of government, whatever branch, is that it always have an answer to Posner’s question. When acting on behalf of the public, it ought always have a clear reason for what it is doing, that it can articulate without shame, sloganeering, or reliance on non-existent evidence. Is that too much too ask?
Yet so often Government is failing this simplest of tests. Copyright, our favorite topic, is full of stuff that lacks what lawyers call a rational basis. If you really ask — what does it accomplish to extend copyright on existing works by 20 years? How does that promote the progress of Science? There just isn’t, and wasn’t an answer.
Or this weekend, as the Adminstration put the nation in a state of fear with heightened terror warnings. We should expect a reason, and good reason. Fear is very expensive. But we read instead that years-old evidence justified the action? We’re not in a position to know better, but why can’t the Administration explain why it is doing what it does? Why can’t it give reasons for its actions that don’t insult our intelligence?
Or consider the Supreme Court, which in Blakely, seemed to strike the sentencing guidelines and created chaos in the district courts. Again, to what end? Can the Court even articulate what it thinks it is accomplishing?
I don’t think Government by reason is too much to ask for. But it certainly isn’t what we’re getting.
Last week I was chatting with a friend who now works on the House Ways and Means Committee. Talk turned to the Australia-US Free Trade Agreement, which Congress passed in July and which President Bush ratified yesterday.
“That DMCA and copyright term extension stuff,” he said to me, “None of it was really seen as controversial.”
“Some people consider it controversial” I said.
“I’m sure you’re right, and that’s what I thought” he said, “But we only got letters from the library people.” A pause. “Its become a standard clause, and doesn’t really get much attention. If people care about it, they need to do more.”
He’s right. Years of DMCA & term extension criticism can easily boil down to “not controversial.”
I wasn’t convinced that the broadcast flag was such a big deal. But this story about Tivo asking the FCC for permission to add new features is changing my mind. Creative destruction doesn’t ask for permission. (Thanks to Jonathan Zittrain, Susan Crawford).
Jack Valenti says goodbye in the LA Times today, rating his career “AE--always exciting.” A few better and less-well known Valentisms from the King-Kong of lobbyists:
On the nascent cable industry, in 1974
“[Cable will become] a huge parasite in the marketplace, feeding and fattening itself off of local television stations and copyright owners of copyrighted material. We do not like it because we think it wrong and unfair.”On the dangers on media concentration, 1984 Op-Ed
“Will a democratic society allow just three corporate entities to wield unprecedented dominion over television, the most decisive voice in the land? There are now only three national networks .… There will never be more than three national networks.”
Here’s the hypothesis: Today’s telecom and copyright laws often regulate similar subjects, but with a big difference. The telecom laws slightly favor market entrants, while the copyright laws favor the incumbent disseminators. The result is a “copyright gap” that grows larger every day.
An agreement that may change the world
For the developing world, farm subsidies are slow-motion weapons of mass destruction. Yesterday’s WTO agreement is the first multilateral deal in a decade that pledges reductions. If it holds, much could change — but it could also mean new pressures for adherence to international IP laws.
A question that should be asked: Would a Kerry Adminstration veto the Induce Act?
Advertising every day becomes more like cave art. Here’s aBetterEarth’s new environmental ad contest.
no potential for a substantial noninfringing use?
Here’s a BitTorrent file that will get you, p2p, the video of the Hearings on the INDUCE Act, prepared by Tom Barger. Watch, and blog the substantial noninfringing use.
Reason brings some reason to the JibJab jumble, through an article by Jesse Walker.
“The Integral” has an album of remixed campaign ads called “Campaign Songs,” available under a Creative Commons license, and hosted by the Internet Archive.
This work is licensed under a
Creative Commons License.